EEOC Issues Proposed Regulations Under Pregnant Workers Fairness Act
Last month, the Equal Employment Opportunity Commission (the “EEOC”) published in the Federal Register its proposed regulations under the federal Pregnant Workers Fairness Act (the “PWFA”). The proposed regulations set forth the EEOC’s interpretations of the newly enacted PWFA and provide comprehensive examples to assist employers in understanding their obligations under the law.
The proposed regulations are currently in the public comment stage and are expected to be finalized and formally released by the EEOC later this year.
The PWFA was adopted when President Biden signed the Consolidated Appropriations Act, 2023, on December 29, 2022. The PWFA, which went into effect on June 27, 2023, requires employers to provide reasonable accommodations for pregnant applicants and employees, similar to employers’ obligations under the Americans with Disabilities Act (“ADA”).
The PWFA applies to “covered employers,” defined as private and public sector employers with at least fifteen employees. The statute requires employers to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs, based on a physical or mental condition that is related to pregnancy, childbirth, or a related medical condition, including, but not limited to, current, past, and potential pregnancy, infertility or fertility treatments, miscarriage, use of birth control, or postpartum depression.
The PWFA adopted the same definitions of “reasonable accommodation” and “undue hardship” as under the ADA. Similarly, the PWFA provides for the same type of “interactive process” to be used to determine appropriate reasonable accommodations for employees and applicants.
The PWFA provides that employees or applicants (or their representatives) can make their employer aware of their limitations. Under the PWFA, an employer cannot force an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided to the employee. Further, an employer cannot require an individual to accept an accommodation without a discussion about the accommodation. The employer must engage with the employee or applicant in the interactive process and may seek medical documentation in support of the employee’s or applicant’s request for a reasonable accommodation.
Under the PWFA, an employer is prohibited from denying a job or other employment opportunities to a qualified employee or applicant based on the individual’s need for a reasonable accommodation. An employer is also prohibited from retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding.
Proposed PWFA Regulations
Outlined below are some key aspects of the EEOC’s proposed regulations under the PWFA.
A “Qualified” Individual
Although the EEOC relied heavily on ADA concepts, its proposed PWFA regulations depart slightly from the ADA by deeming an individual “qualified” for a position even if the individual currently cannot perform essential functions of the job, so long as the inability to perform essential job functions is “temporary” and the employee will be able to do so within the “near future,” which is defined as up to about 40 weeks.
The EEOC also has stated that this proposed definition of “temporary” does not mean that an employer is always required to suspend or modify an employee’s essential job functions for a full 40 weeks. If an employer can demonstrate that temporarily suspending or modifying an employee’s essential job duties would create an undue hardship for the employer, the employer is not obligated to do so.
Employers are required to accommodate employees and applicants with “known limitations” related to pregnancy, childbirth, or related medical conditions. This means that the employee or applicant (or their representative) must communicate the limitation to the employer, but the employee need not specifically reference the PWFA or use any key words in order for the limitation to be considered “known.”
As such, an employer must accommodate employee limitations that the employer should know exist. For instance, if an employer is aware that an employee is taking frequent breaks due to pregnancy, the employer must accommodate that employee without asking for documentation or “proof” that the employee is pregnant.
Further, a limitation on an employee’s ability to perform their job does not need to be severe. It may be minor, episodic, or simply required to maintain the employee’s health or the health of the employee’s unborn child.
The definition of “reasonable accommodation” under the PWFA is almost identical to the ADA’s definition. Where appropriate, an employer must offer modifications or adjustments to the job application process or the work environment to enable a qualified employee or applicant equal privileges, opportunities, and benefits of employment.
The EEOC’s proposed regulations require potential accommodations to be evaluated on a case-by-case basis through the “interactive process.” This entails a discussion (or multiple discussions) between the employer and the employee or applicant to identify a reasonable accommodation that would allow the individual to perform the essential functions of the job, without creating an undue hardship for the employer.
The interactive process includes:
- Determining the essential functions of the job;
- Conferring with the employee or applicant regarding what kind of accommodation is necessary;
- Evaluating potential accommodations, which may include suspending performance of one or more essential functions of a job if the individual can be expected to be able to perform those functions in the near future;
- Considering – though not necessarily granting – the accommodation preferred by the employee; and
- Implementing an accommodation that is effective and most appropriate under the circumstances.
The EEOC’s proposed regulations include examples of reasonable accommodations under the PWFA, including, for example, more frequent breaks; carrying and drinking water as needed; sitting or standing as needed; schedule changes; job restructuring; acquiring or modifying equipment, devices, or uniforms; and modifying the work environment.
Employer Requests For Documentation
The proposed regulations limit an employer’s ability to request documentation as to whether a limitation is related to pregnancy, childbirth, or a related medical condition. If an employer has “reasonable concerns” in this regard, the employer may request information as part of the interactive process.
However, the EEOC anticipates that the determination of whether a limitation is related to pregnancy, childbirth, or a related condition generally “will be a straightforward determination” that will not require the employee to supply documentation or verification. Under the proposed regulations, an employer is permitted to seek reasonable supporting documentation for a proposed accommodation only if needed to determine whether to grant the accommodation. Any such documentation and information should be kept confidential.
The proposed regulations detail various actions that would be considered a violation of the PWFA. These include, for example:
- Unreasonably delaying a response to a request for an accommodation;
- Refusing, in appropriate circumstances, to consider a temporary suspension of one or more essential functions of a job;
- Denying an accommodation based on lack of documentation alone;
- Denying an individual employment opportunities for the sole reason that the individual needs a pregnancy-related accommodation;
- Requiring an employee or applicant to accept an accommodation that was not determined through the interactive process; and
- Retaliating against an employee for requesting or using a reasonable accommodation.
Next Steps For Employers
We recommend that employers review the PWFA and the EEOC’s proposed regulations, in consultation with employment counsel, and update their pregnancy accommodation policies and related forms.
It is also important for employers to keep in mind that state or local laws may provide additional protections for pregnant employees or applicants.
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If you have questions about your organization’s responsibilities under the PWFA or similar state or local laws, please feel free to contact one of our experienced employment lawyers.